You Can Draw a Straight Line from the 2000 Recount to 2016 Voter Suppression

Supreme Court Justice John Paul Stevens could see a church by daylight. In his dissent in the case of Bush v. Gore, Stevens saw through the obfuscation and the tinpot legalese of that egregious miscarriage of justice and into the future. What he saw did not make him optimistic.

What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law.

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The principal strategy of the Republican side of the battle over Florida's pivotal 25 electoral votes was to delegitimize publicly the institutions that the Republican side found inconvenient to the effort to make George W. Bush president. These included Florida state laws regarding recounts, the Florida courts, and the simple process of hand-counting ballots. (Then-Governor Marc Racicot of Montana was a particularly pious charlatan in this regard. Last July, Racicot wrote an op-ed in The Washington Post stating his opposition to the nomination of Donald Trump. He should've thought of that 16 years earlier.) Then the Supreme Court decided to delegitimize itself. Voter suppression and institutional delegitimization are two sides of the same coin. One is essential to the other. Justice Stevens saw where this was headed, and it was headed to where we are right now.

The past 17 years has been the worst period for voting rights since the collapse of Reconstruction, and it all goes back to the dynamics unleashed in our politics in 2000. In 2000, for example, Florida contracted for a voter "purge" list that disenfranchised an estimated 20,000 voters, most of them minority citizens, because their names were similar to those of convicted felons. And, now, we have the Interstate Voter Crosscheck Program, which is to that Florida purge list what an oak is to an acorn. The entire Republican political apparatus, state and federal, has been dedicated to rolling back every hard-won expansion of the franchise and democratization of the franchise back to 1913.

GettyTom Williams/Roll Call

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I chose that date because that was when the 17th Amendment calling for the direct election of senators was ratified and, as John Nichols points out in The Nation, they're even after that now. You may be comfortable handing the election of senators over to monkeyhouses like the Kansas and Texas state legislatures, but I'm not. This is, of course, part and parcel with the attempt to call a Constitutional Convention under Article V, a constitutional neutron bomb that is dangerously close to exploding. You may be comfortable exchanging the ideas of James Madison for those of Tom Coburn or Mark Levin, but I'm not.

You may be comfortable handing the election of senators over to monkeyhouses like the Kansas and Texas state legislatures, but I'm not.

True, the pushback on Kobach has been vigorous. (He's getting sued so often you'd think he was President* Trump and the NAACP was a bunch of contractors he'd stiffed.) But the patterns of force unleashed 17 years ago continue unabated in our politics, in our political dialogue, and in our perceptions of ourselves as a self-governing people. Every time a citizen declines to vote because "they're all the same," and every time a citizen declines to vote because it's too much trouble, those patterns win again. And if you want an argument that every election matters, imagine where we'd be on the travel ban without state attorneys general, or where we'd be on voting rights issues without the steadfast resistance of secretaries of state around the country.

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That mockery of a presidential commission sat for the first time Wednesday morning, but it was years in the making. John Paul Stevens saw it coming. In 2000, the Supreme Court blessed official ratfcking with a constitutional imprimatur. Famously, it held that its decision in that case was "limited to the circumstances" of the 2000 election and, therefore, had no precedential value. That may be true in the nation's courts, but it has proven to be a deadly precedent in our politics. It is going to take a generation, at least, to reverse.